In the past, social media and other new data types (i.e., activity tracker information) have not been widely requested in e-discovery activities. With increased social media use, however, that is changing, and processes should be in place to preserve and produce this data, especially in a world becoming more dependent on social media and new data types for communicating and tracking analytics.

Overview:

In this slip and fall case, the defendant, Denny’s, moved to compel discovery of a variety of data sources.

In discovery, the defendant asked the plaintiff to produce various categories of documents, including:

Documents and medical records related to two prior incidents

Text messages sent in the 48 hours after the accident

Any data from a FitBit or other activity tracker for 5 years prior to the accident

Review of the plaintiff’s social media account

Employment records

When the plaintiff didn’t fully produce the requested materials, the parties met and conferred three times to resolve their disputes. Nevertheless, the two sides couldn’t come to agreement on the e-discovery parameters, and the defendant filed a motion to compel.

Ruling:

Defendant’s Motion to Compel Discovery Granted in Part. The court carefully analyzed each of defendant’s requests and permitted discovery of relevant records, narrowly tailoring some of the requests, including the social media request, to materials relating to the alleged accident or injuries.

Duty on the Party Resisting Discovery. The court noted that the “burden is on the party resisting discovery to show why a discovery request should be denied by specifying in detail, as opposed to general and boilerplate objections, why ‘each request is irrelevant.’” In these instances, the court ruled the plaintiff did not meet this burden.

Social Media Evidence is Discoverable. For all e-discovery, not just claims of emotional distress, social media data is discoverable if it is relevant to the issues involved in the case. The court went on to state that social media activity can be “reflective of an individual’s contemporaneous emotions and mental state.”

Plaintiff Ordered to Supplement Response Regarding FitBit Data. Plaintiff responded to request for FitBit data by stating she had no responsive documents but reserved the right to supplement her response. The court did not have sufficient information to determine whether plaintiff conducted a reasonable inquiry to locate such data. Therefore, the court ordered plaintiff to describe the search she conducted.

The expansion of our digital world has also expanded the scope of data that is potentially relevant to a case. If you anticipate litigation, make sure your client preserves all types of data, from Facebook to FitBit, that could be deemed relevant and proportional to the needs of the litigation.